UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4886

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
THOMAS J. SAVOCA, a/k/a Irvin L. Roddy,
Defendant - Appellant.

No. 04-4890

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
CARLOS J. SANTOS,
Defendant - Appellant.

Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-194)

Submitted:

October 31, 2005

Decided:

November 17, 2005

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

No. 04-4886 affirmed; No. 04-4890 affirmed in part, vacated in

part, and remanded by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR, VICTOR, & HELGOE, L.L.P., Charleston,

West Virginia; Jacqueline A. Hallinan, HALLINAN LAW OFFICES,
P.L.L.C., Charleston, West Virginia, for Appellants. Charles T.
Miller, Acting United States Attorney, Susan M. Arnold, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 -

PER CURIAM:
Thomas J. Savoca and Carlos J. Santos appeal their
convictions and sentences for bank robbery in violation of 18
U.S.C. 2113(a), (d) (2000) and use of a firearm during a bank
robbery in violation of 18 U.S.C. 924(c)(1)(A)(ii) (2000).
Finding no reversible error with Savocas conviction and sentence,
we affirm. We affirm Santos conviction, but we vacate his bank
robbery sentence and remand for resentencing in light of United
States v. Booker, 125 S. Ct. 738 (2005).
Savoca and Santos first claim that the district court
erred in denying their motion for a judgment of acquittal.

We

review the district courts decision to deny a motion for judgment

of acquittal de novo.
136 (4th Cir. 2001).

United States v. Gallimore, 247 F.3d 134,

If the motion was based on insufficiency of

the evidence, the verdict must be sustained if there is substantial

evidence, taking the view most favorable to the government, to
support it.

Glasser v. United States, 315 U.S. 60, 80 (1942).

Savoca and Santos assert that the Government failed to

prove that Traders Bank was federally insured by the Federal
Deposit Insurance Corporation (FDIC), an essential element of bank
robbery that the government must prove beyond a reasonable doubt.
See 18 U.S.C. 2113 (2000).

At trial, the Government called

Douglas Robinson, the manager of the bank, to testify.

Robinson

testified that deposits of Traders Bank are insured by the FDIC.

- 3 -

This court has held that testimony from a bank employee that the
deposits are insured by the FDIC is sufficient evidence from which
the jury may conclude the bank was insured at the time of the
robbery.
1988).

See United States v. Gallop, 838 F.2d 105 (4th Cir.

Furthermore, testimony from a bank employee that the

deposits are FDIC insured is sufficient evidence from which the

jury could reasonably infer that the bank was insured at the time
of the robbery.
Cir. 1969).

United States v. Safley, 408 F.2d 603, 605 (4th

Due to the absence of contradictory evidence and

taking all inferences in favor of the Government, the Government

presented sufficient evidence that Traders Bank was FDIC insured on
the date of the robbery.

The district court did not err when it

denied Savoca and Santos motion for a judgment of acquittal.

Savoca

next

claims

that

the

district

court

used

judicially found facts to enhance his sentence from a base offense

level

of

preserved

twenty
this

to

claim

level
by

of

twenty-nine.

objecting

to

his

Because
career

Savoca

offender

classification based upon Blakely v. Washington, 124 S. Ct. 2531

(2004), this courts review is de novo.

See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

Regardless of whether

the district court impermissibly used judicially found facts for

those initial enhancements, those enhancements became irrelevant
once the district court found that Savoca qualified as a career
offender under U.S. Sentencing Guidelines Manual 4B1.1 (2004).

- 4 -

Because Savoca qualified as a career offender, the district court

had to increase Savocas offense level to thirty-four for that
reason alone, and the earlier enhancements were subsumed.
Savoca also claims the district court erred when it found
he was a career offender and enhanced his sentence based on prior
convictions that were not charged in his indictment nor found by
the jury. However, in Almendarez-Torres v. United States, 523 U.S.
224 (1998), the Supreme Court held that the government need not
allege in its indictment and need not prove beyond reasonable doubt
that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. See United
States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (Almendarez-Torres
was not overruled by Booker).
Savoca finally claims that the district courts treatment
of the sentencing guidelines as mandatory requires resentencing.
Assuming without deciding that Savoca preserved this claim, we
review the error under the harmless error analysis.
125 S. Ct. at 769.

See Booker,

The government bears the burden in harmless

error review of showing beyond a reasonable doubt that the error

did not affect the defendants substantial rights.
F.3d at 405.

Mackins, 315

Affecting substantial rights means that the error

affected the outcome of the proceedings.

261 F.3d 496, 499 (4th Cir. 2001).

United States v. Stokes,

An error in sentencing may be

disregarded if the reviewing court is certain that any such error

- 5 -

did not affect the district courts selection of the sentence

imposed.

Williams v. United States, 503 U.S. 193, 203 (1992).

In this case, the district court demonstrated that it

exercised its discretion in choosing Savocas sentence.

The

district court weighed the guideline range against the sentencing

factors and gave Savoca, in the district courts view, the maximum
possible sentence he could have received while still allowing for
the possibility of a few years out of prison at the end of his
life.

The court characterized Savoca as one of the worst people

to have ever appeared before the court, stated that his age was the
only mitigating factor relevant to his sentencing, and commented
that its only the mercy of this court that has kept me from
giving you a life sentence here. We accordingly conclude that the
district courts error in sentencing Savoca under the mandatory
guidelines constituted harmless error that did not affect Savocas
substantial rights.

Accordingly, we affirm Savocas sentence.

Santos also claims that the district court improperly

enhanced his sentence with judicially found facts under Booker.
Santos first claims that the district court improperly enhanced his
sentence under USSG 2B3.1(b)(1) because the offense involved a
financial institution and under USSG 2B3.1(b)(7)(D) because the
loss was greater than $250,000.

However, the facts necessary for

these enhancements were charged in the indictment and found by the

jury.

Count One of the indictment charged Santos with stealing

- 6 -

$308,000 from the bank and stated that Traders Bank was insured by
the FDIC.

The jurys guilty verdict was thus a finding that the

loss

greater

was

2B3.1(b)(7)(D).

than

$250,000,

in

satisfaction

of

USSG

By definition, the jurys finding that Traders

bank was FDIC insured qualified it as a financial institution for

USSG 2B3.1(b)(1).

See 18 U.S.C. 20(1) (2000).

The district

court did not engage in any impermissible judicial fact finding

under Booker when it increased Santos offense level from twenty to
twenty-five.
Santos also claims the district court improperly enhanced
his sentence under USSG 3C1.2 because of a high speed chase
following the bank robbery.

The Government concedes that this

enhancement was improper judicial fact finding and that Santos

should be resentenced.

Without the two level enhancement, Santos

sentencing guideline range on his bank robbery conviction would

only have been 70-87 months imprisonment.

Santos 108 month

sentence for the bank robbery count thus exceeds the sentence that
could have been imposed based only on the facts found by the jury.
In light of Booker, we vacate Santos bank robbery sentence and
remand

the

case

for

resentencing.*

Although

the

sentencing

guidelines are no longer mandatory, Booker makes clear that a

Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), [w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of Santos sentencing.
- 7 -

sentencing court must still consult [the] Guidelines and take them
into account when sentencing.

125 S. Ct. at 767.

On remand, the

district court should first determine the appropriate sentencing

range under the Guidelines, making all factual findings appropriate
for that determination. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005) (applying Booker on plain error review).

The

court should consider this sentencing range along with the other
factors described in 18 U.S.C. 3553(a) (2000), and then impose a
sentence.

Id.

If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as
required by 18 U.S.C. 3553(c)(2) (2000).

Id.

The sentence must

be within the statutorily prescribed range and . . . reasonable.

Id. at 546-47.
Accordingly, we affirm Savocas conviction and sentence.
We affirm Santos conviction.

In light of Booker, we vacate

Santos bank robbery sentence and remand for resentencing.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.

No. 04-4886 AFFIRMED

No. 04-4890 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

- 8 -